Bloggings On Dysfunctional Government

July 24, 2010

I've written time and again on the mission amnesia that afflicts federal immigration agencies. For students of bureaucratic behavior in the immigration ecosystem, another key lesson on forgetfulness can be learned in a teachable moment offered at taxpayer expense if we examine federal decisions in the pre-spill era before the offshore and onshore catastrophe in the Gulf of Mexico.

To be sure, most of the blame for the failure of government to have refused permission to deploy the Deepwater Horizon rig goes, deservedly, to the Minerals Management Service (since rebranded as the Bureau of Ocean Energy Management, Regulation and Enforcement). Yet, another federal agency -- the Fish and Wildlife Service -- had the chance to ask for more study of the threat deepwater drilling might pose to coastal flora and fauna. Instead of carefully studying the risks, FWS signed off with MMS and allowed the drilling to proceed. As the New York Timesreports, "the wildlife agency agreed with the minerals serviceís characterization that the chances . . . deepwater drilling would result in a spill that would pollute critical habitat was 'low.'"

So applying this lesson to the immigration agencies, I conclude: A single agency with a clear mission and unimpeded authority must not unthinkingly defer to another with a different mission.

Congress seems to have reached the same conclusion about bureaucratic failures last week in passing financial-reform legislation that created a Consumer Financial Protection Bureau. Just as the discovery of cross-bureau mindlessness led Congress to establish a laser-focused consumer watchdog, our legislators must empower and hold accountable a single official who can define immigration law rights and obligations for all stakeholders. Instead, the cross-agency players who pronounce immigration rules are even more befuddling than Abbott's naming of the baseball lineup to Costello.

A non-exhaustive list of immigration-law proclaimers includes five Departments (and multiple subdivisions in each):

Homeland Security (USCIS [including the Office of the Ombudsman, the Fraud Detection and National Security division, the Administrative Appeals Office and the Office of Service Center Operations], CBP [including ports of entry and the Border Patrol] and ICE [including the Office of International Operations, SEVIS, and E-Verify]),

State (including consular posts and embassies worldwide, and the Visa Office, Office of Public and Diplomatic Liaison and Overseas Citizen Services, all in the Bureau of Consular Affairs),

Labor (the Office of the Solicitor, the Administrative Law Judges, the Appellate Review Board, the Employment & Training Administration [including the Office of Foreign Labor Certification] and Employment Standards Administration [including the Wage & Hour Division] and the Office of Federal Contracts Compliance Programs),

Justice (the Office of the Attorney General, the Office of Special Counsel for Unfair Immigration-Related Employment Practices, the Office of Immigration Litigation, the Office of the Chief Administrative Hearing Officer and the Executive Office for Immigration Review) and

Treasury (the Social Security Administration).

To complicate matters even further, a plethora of Memoranda of Understanding between and among these governmental units share or delegate authority over increasingly thinner slivers of the immigration landscape, while the Office of Management and Budget serves as perfunctory gatekeeper over all immigration-related regulations and forms.

Yet all of these federal entities purport to interpret and apply one and the same law, the Immigration and Nationality Act (INA). No single entity or officer is empowered with unimpeded authority to provide a harmonized interpretation of the immigration laws notwithstanding this gobbledygook from INA Section 103(a)(1):

The Secretary of Homeland Security shall be charged with the administration and enforcement of this Act and all other laws relating to the immigration and naturalization of aliens, except insofar as this Act or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.

But wait a minute, you might say, what about the last proviso? the Attorney General has ultimate power over immigration law ("determination[s] and ruling[s] by the Attorney General with respect to all questions of law shall be controlling"). The concept sounds fine in principle but falls flat in practice. Except in rare and highly public pronouncements (e.g., ineffective assistance of counsel), the AG has simply given up on reconciling and harmonizing the answers to zillions of legal questions that perplex immigration stakeholders.

While we wait for the midterm elections and Congressional interregnum to pass, immigration stakeholders (who I count as all Americans) must pressure our leaders to clarify and centralize the authority to pronounce the immigration rules and appoint an accountable Executive-Branch umpire to make sure all the players play nice. Until then, I disagree with Abbott. Who's not on first. No one's on first.

About The Author

Angelo A. Paparelli is a partner of Seyfarth Shaw LLP. Mr. Paparelli, with a bicoastal practice in Southern California and New York City, is known for providing creative solutions to complex and straightforward immigration law problems, especially involving mergers and acquisitions, labor certifications and the H-1B visa category. His practice areas include legislative advocacy; employer compliance audits and investigations; U.S. and foreign work visas and permanent residence for executives, managers, scientists, scholars, investors, professionals, students and visitors; immigration messaging and speech-writing; corporate policy formulation; and immigration litigation before administrative agencies and the federal courts. He is frequently quoted in leading national publications on immigration law. He is also President of the Alliance of Business Immigration Lawyers, a 30-firm global consortium of leading immigration practitioners. Paparelliís blog and a comprehensive list of his many immigration law articles can be found at www.entertheusa.com. He is an alumnus of the University of Michigan where he earned his B.A., and of Wayne State University Law School where he earned his J.D. Paparelli is admitted to the state bars of California, Michigan and New York.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.